December 01, 2017

The “Arkansas Eight” Update: Three Stays Remain in Place, One Granted Clemency

On February 27, 2017, Arkansas Governor Asa Hutchinson issued executive orders scheduling eight executions to take place over the course of 11 days. Arkansas readily conceded that this unprecedented rush to execute was due to the state’s limited supply of midazolam, one of three drugs used in the state’s lethal-injection protocol, which was set to expire at the end of April 2017. Once litigation over the lethal injection protocol concluded, the state worked quickly to carry out as many death sentences as its remaining drug supply would allow.

This rush to execute eight individuals in such a compressed time frame resulted in an equally unprecedented amount of litigation over the course of roughly three weeks, ranging from suits filed on behalf of drug companies who did not want their drugs used in the executions, to suits challenging the state’s failure to follow its clemency procedures for the condemned individuals. As a result of the multiple lawsuits filed, Arkansas executed only four of the eight men initially slated for execution before the end of April. The four remaining men obtained stays of execution.

The Arkansas Supreme Court granted Bruce Ward a stay of execution over concerns about his competency to be executed. Mr. Ward suffers from ongoing delusions and hallucinations. In 2006, he was evaluated by a psychiatrist and diagnosed with paranoid schizophrenia.

The Arkansas Supreme Court stayed Don Davis’s execution based on the U.S. Supreme Court case McWilliams v. Dunn, which was pending at the time. Since the Court’s decision in that case ultimately failed to address whether a state psychiatrist should be fully independent from the prosecution—the concern raised in Mr. Davis’s case—it is unclear what impact the June ruling will now have.

The Arkansas Supreme Court granted Stacey Johnson a stay of execution to allow for an evidentiary hearing on retesting DNA evidence in his case, a request that had previously been denied by a lower court. Mr. Johnson’s conviction was based primarily on now-recanted witness testimony and incomplete DNA testing.

The U.S. District Court for the Western District of Arkansas granted Jason McGehee a stay of execution to ensure compliance with a 30-day statutory public notice period following the Parole Board’s recommendation that he be granted clemency. At the time, the state was set to carry out his execution prior to the conclusion of this statutorily mandated public comment period. On October 10, 2017, Governor Hutchinson officially granted Mr. McGehee clemency.

Over this same period, Arkansas executed four men: Ledell Lee, Jack Jones, Marcel Williams, and Kenneth Williams. Carrying out four executions over the course of a week, as Arkansas did, stands alone in the modern history of capital punishment in this country.